United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT MOORE'S MOTION FOR PHYSICAL AND MENTAL EXAMINATION PURSUANT TO RULE 35(a)(2) (Dkt. 148)
MARK A. GOLDSMITH, District Judge.
These three cases have been consolidated for purposes of discovery. See 10/7/13 Order (Dkt. 67). Plaintiffs in these cases allege that, during the 2010-2011 and/or the 2011-2012 school years, Defendant Sharon Turbiak, a former teacher at Webster Elementary School in the Livonia Public School District ("LPS"), physically and emotionally abused students who were in the LPS Moderate Cognitive Impairment program. Plaintiffs further allege that co-Defendants were aware of the abuse, but failed to act to protect those children.
This matter is presently before the Court on Defendant Shellie Moore's motion for physical and mental examination pursuant to Rule 35(a)(2) (Dkt. 148). Plaintiffs have filed a response to Defendant's motion (Dkt. 151), to which Defendant filed both a reply (Dkt. 155) and supplemental brief (Dkt. 159). Because the Court would not be aided by oral argument, the motion will be decided based on the parties' briefing. See E.D. Mich. L.R. 7.1(f)(2). As explained fully below, the Court grants Defendant's motion, in part, and denies it, in part.
Defendant Moore states that Plaintiffs' allegations of both present and future physical and mental injury have placed their physical and mental conditions in controversy. Def. Br. at 12. Consequently, Defendant has requested that Plaintiffs submit to independent medical examinations, to be performed by Dr. Jennifer Huffman, Ph.D. Id . According to Defendant, the examination would consist of two parts. First, Dr. Huffman would interview the parents without Plaintiffs present, during which Dr. Huffman would explain the testing and procedure to the parents. Def. Mot. at 4. Second, Dr. Huffman would perform psychological testing of Plaintiffs. Id.
Although Plaintiffs have agreed to examinations, Plaintiffs have sought to include the following conditions: (i) notice of the testing procedures and a reasonable opportunity to object; (ii) permission to record the examinations and/or permission for Plaintiffs' parents to observe the examinations; (iii) reasonable scheduling accommodations for testing; and (iv) no examination of Plaintiffs' parents. Pls. Br. at 3, 6; Def. Br. at 12. Because Defendant opposes these conditions, the present motion was filed.
III. STANDARD OF DECISION
Pursuant to Federal Rule of Civil Procedure 35, the Court "may order a party whose mental or physical condition... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Fed.R.Civ.P. 35(a)(1). This Rule also allows the Court to order the examination of an individual who is in a party's custody or legal control. Id . To secure such an order, the moving party has the burden of demonstrating that: (i) the opposing party's physical or mental condition is in controversy, and (ii) there is good cause to require the opposing party to submit to the examination. Benchmaster, Inc. v. Kawaelde, 107 F.R.D. 752, 753 (E.D. Mich. 1985); Fed.R.Civ.P. 35(a)(2)(A) ("The order [for examination] may be made only on motion for good cause and on notice to all parties and the person to be examined."). A plaintiff clearly places his or her "mental or physical injury... in controversy" when he or she seeks damages for a mental or physical injury, thereby providing "the defendant with good cause for an examination to determine the existence and extent of such asserted injury." Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964) (citation omitted) (recognizing that, in such situations, the two requirements for an examination can be satisfied based on the pleadings alone).
Plaintiffs are children between the ages of six and nine years old, all of whom are alleged to have certain congenital disorders or medical conditions, including Down syndrome,  cri-du-chat syndrome,  and hydrocephalus. Pls. Br. at 6. There is no dispute that Plaintiffs' physical and mental conditions are in controversy, and that examinations are appropriate. Pls. Resp. at 4; Pls. Br. at 6. Therefore, what must be decided is the appropriateness of the conditions, which are now considered, in turn.
A. Condition One - Providing a list of all testing to be performed before the examinations, as well as providing an opportunity to object to any unreasonable testing or activity
Plaintiffs request that Defendant provide a list of all testing that might be performed on Plaintiffs, and that Plaintiffs be afforded the opportunity "to object to any testing or activity which they believe to be unreasonable." Pls. Br. at 6-7. Plaintiffs note, however, that "[i]f these are true neuropsychological examinations, such objections would obviously be limited." Id. at 7 n.4.
Regarding the first portion of this condition, the Court finds that there is no genuine dispute among the parties. Plaintiffs request that they be informed of the testing procedures before the examinations, and Defendant claims that the first session of the examinations would consist of an interview, during which Defendant's expert would "explain the testing and procedure to the parents." Def. Mot. at 4. Because the parents would be notified of the examination ...